WOODS v. KURZ (1999)

 Plaintiff commenced this action to recover damages for injuries he sustained when he slipped and fell on ice during the course of his duties as a guard at a shopping center owned by defendants.   The accident allegedly occurred in an area behind the plaza.   Supreme Court properly denied that part of plaintiff's motion to dismiss the second affirmative defense alleging that there are collateral sources for payment of plaintiff's economic losses (see, CPLR 4545).   Plaintiff failed to submit an affidavit from a person with personal knowledge of the facts or other evidentiary proof (see, Arriaga v. Michael Laub Co., 233 A.D.2d 244, 649 N.Y.S.2d 707;  Becker v. Elm Air Conditioning Corp., 143 A.D.2d 965, 966, 533 N.Y.S.2d 605).

 The court erred, however, in denying that part of plaintiff's motion to dismiss the third, fourth and fifth affirmative defenses alleging limited liability pursuant to CPLR article 16.   Defendants contend that a snow removal contractor may bear responsibility for the accident.   Plaintiff submitted proof that the contractor was not responsible for the removal of snow and ice in the area where the accident occurred, and defendants failed to raise a question of fact with respect to that issue (see, Rosenberg v. Fuller Rd. Fire Dept., 34 A.D.2d 653, 654, 310 N.Y.S.2d 212, affd. 28 N.Y.2d 816, 321 N.Y.S.2d 916, 270 N.E.2d 732).   We therefore modify the order by granting in part plaintiff's motion and dismissing the third, fourth and fifth affirmative defenses.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: